LP01
Item
N O R T H
S Y
09/05/16
Legal and Planning Committee
D N E Y
C O U N C I
L
R E P
O R T S
Report to General Manager
Attachments:
1. Current Appeal Matters List
SUBJECT:
Current Appeals and Results - May 2016
AUTHOR:
Matthew Pearce, Solicitor
EXECUTIVE SUMMARY:
Attached is a list of current appeal matters as at 4 May 2016 for Council’s information.
As at 4 May 2016, Council has spent $ 191,423 on funds on legal fees from the budgeted
amount of $ 781,000 for the 2016 financial year.
RECOMMENDATION:
1. THAT the report be received.
Report of Matthew Pearce, Solicitor
Re: Current Appeals and Results - May 2016
(2)
LINK TO DELIVERY PROGRAM
The relationship with the Delivery Program is as follows:
Direction:
5. Our Civic Leadership
Outcome:
5.3 Council is ethical, open, accountable and transparent in its decision making
BACKGROUND
The Current Appeal and Results list was previously reported to the Legal and Planning
Committee meeting of 4 May 2016.
SUSTAINABILITY STATEMENT
The sustainability implications were considered and reported during the assessment of each
particular application.
DETAIL
Council is aware that the defence of appeals lodged by applicants as well as the enforcement
of compliance outcomes represents a major ongoing expense for Council. The attached list
provides a summary of each current legal proceedings (including fees incurred) as at
4 May 2016.
CURRENT MATTERS LIST
As at 4 May 2016
Property
DA No.
Appeal No.
Date of Appeal (DOA)
29A Shellcove Road,
Neutral Bay
LEC 50043
DOA 4/1/11
HWL
Applicant/
Other party
Peter Perrini
Nature of Appeal
Class 5 Prosecution
Proceedings for
carrying out
development not in
accordance with the
EPA Act 1979.
Council Officer
responsible
Adrian
Panuccio
Status
Guilty plea heard on 17 to 19 August 2011. Final
submissions on sentencing heard on 21 October
2011. Judgment on sentence reserved. Judgment
handed down on 26 June 2013. Mr Perini fined
$28,000 and ordered to pay Council's costs. Costs
offer made to Storey & Gough. Response
received. Defendant filed Notice of Intention to
Appeal on 23/7/13 which is effective for 6 months.
The defendant has now filed a Notice of Cessation.
No appeal will be filed.
Fees Estimate ($)
Fees Billed ($)
Disb. ($)
Officer Recommendation
Council decision
Cost Consultants
Costs: $1,115.69
Result
Mr Perini Ordered
to pay $28,000 plus
council’s
costs/Costs
Assessment
Costs negotiations unsuccessful. Files being
prepared for referral to a costs consultant to have
Bill of Costs drawn. Draft Bill of Costs in the
amount of $130,000 served on the defendant.
Matter had been listed for hearing in the Land and
Environment Court for five days commencing on 4
March 2013. Matter discontinued by Applicant on
4/3/13 with Applicants to pay Council's costs of the
proceedings.
1 Henry Lawson Drive,
McMahons Point
DA 214/10
LEC 40086/12
DOA 15/2/12
HWL
David Fox &
Revelop
Projects Pty
Ltd
Class 4 proceedings in
the Land and
Environment Court
seeking a declaration
that the premises enjoy
the benefit of existing
use rights.
Formal Bill of Costs to be filed for assessment and
the Supreme Court advised on 20 October 2014
that a cost assessor has been appointed.
David Hoy
Costs assessment determined with David Fox and
Revelop Pty Limited to pay Council costs of
$ 294,000 jointly or severely.
Cost Consultants
Costs: $8,700
Costs Assessment
determined subject
to a panel review.
Review now
determined.
Instructions have been given to HWL to enforce
the costs judgment. However Costs Respondents
are seeking a review of the determinations. A
review panel has now been appointed by the
Supreme Court to review the costs assessment.
The Review Panel has now determined the costs
assessment.
2
Property
DA No.
Appeal No.
Date of Appeal (DOA)
Applicant/
Other party
Nature of Appeal
Challenge to Council
Amalgamations
MF
Delegate
Minister and
NSW
Department of
Premier and
Cabinet
Class 4 proceedings in
the Land and
Environment Court
3 Amherst Street,
Cammeray
DA 382/14
LEC 10308/15
DOA 9/4/15
In house with Council
Solicitor
50 Ridge Street,
North Sydney
LEC 40389/15
DOA 05/05/15
SH
450 Miller Street
Cammeray
LEC 41101/15
DOA 24/12/14
SH
Brenham Pty
Limited
Class 1 Appeal against
a deemed refusal for a
child care centre in a
State Heritage Property
North Sydney
Leagues Club
(The Greens)
Class 4 Civil
Enforcement against
unauthorised use of
Bowling Greens for
other forms of
entertainment
Harris Farms
Markets Pty
Limited
Class 4 Summons
seeking orders to
restrain amalgamation
of tenancies at
Cammeray Square
Fees Estimate ($)
Fees Billed ($)
Disb. ($)
Officer Recommendation
Council decision
Council Officer
responsible
Status
Matthew
Pearce
Letters of demand sent to various parties on
19 April. Letters rejected by Crown Solicitors.
Proceedings commenced on 2 May 2016. Hearing
the beginning 30 May 2016 with timetable for
evidence.
Luke Donovan
Matter listed for mention on 6 May 2015.
Proceedings adjourned to 3 June 2015, 7 July
2015 and 29 July 2015. Matter listed for s34
conciliation conference on 27 October 2015.
Conciliation conference adjourned to 30 November
2015, 17 December 2015, 29 January 2016 and
now 5 February 2016. Conciliation conference
terminated. Matter now listed for hearing on 11, 12
and 13 May 2016 with a time table for expert
evidence.
Long Huynh
Class 4 proceedings commenced with matter listed
for mention on 5 June 2015. Adjourned to 17 July
2015, 11 September 2015, 9 October 2015, 6
November 2015 and 13 November 2015.
Proceedings timetabled to prepare evidence.
Applicants notice of motion seeking stay dismissed
with costs. Listed on 13 May 2016 to set matter
down for hearing.
Fee Estimate: $ 90,000
Fee: $71,892.96
Pending
Long Huynh
Matter listed for mention on 6 February 2015.
Proceeding further adjourned to 29 May 2015,
9 June 2015, 17 July 2015, 18 September 2015,
20 October 2015, 16 October 2015, 5 November
2015 and 4 December 2015. Proceedings
timetabled to prepare evidence. Listed for further
mention on 1 April 2016. Listed for hearing on 14
June 2016.
Fee Estimate: $ 40,000
Fees: $16,259.61
Pending
Fee Estimate: $250,000
Fees: $0
Fee Estimate: $ 80,000
Fees: $12,600
Recommendation: N/A
Decision: Deemed Refusal
Result
Pending
Pending
3
Property
DA No.
Appeal No.
Date of Appeal (DOA)
1 Henry Lawson
Avenue, McMahons
Point
LEC 11212/15
DOA: 22/12/15
HWL
2 Bray Street, North
Sydney
DA 830/99/10
LEC: 10998/15
DOA: 11/11/15
In house with Council
Solicitor
229 Pacific Highway,
North Sydney
LEC60993/15
DOA: 9/11/15
In house with Council
Solicitor
6 Ross Street,
Waverton
DA 305/15
LEC: 10211/16
DOA: 10/03/16
HDO
Applicant/
Other party
Nature of Appeal
Council Officer
responsible
Status
Fees Estimate ($)
Fees Billed ($)
Disb. ($)
Officer Recommendation
Council decision
David Fox
Class 1 Appeal against
a deemed refusal of a
dwelling house
David Hoy
Council served with Class 1 Application on
22 December 2015. Matter listed for mention on
20 January 2016, 29 January 2016 and 4 February
2016. Listed for hearing on 1, 2 and 3 June 2016.
Fee Estimate: $ 100,000
Fee: $ 10,874.60
Pending
Vickery
Class 1 Appeal against
a modification of
consent concerning a
paved driveway and
gate
Robyn Pearson
Council serviced with Class 1 Application on 11
November 2015. Matter listed for mention on 1
December 2015. Matter timetabled for preparation
of evidence and to hearing. On 7 March 2016
parties entered into s34 Agreement.
Fee Estimate: $15,000 (to
S34 & hearing)
Fees: $660
Determination: Granted of
modification
Section 34
Agreement
Catherine
Chambers
The defendant company has appealed against the
severity of penalty where a Magistrate imposed
fines of $ 11,000 (x2) in respect of a breach of
development consent where the developer failed to
comply with a traffic management plan. Matter
listed on 5 February 2016 for mention. Hearing set
on 22 April 2016 where the Court dismissed the
appeals and order costs in favour of Council.
Fee Estimate: $20,000
Fees: $7,040.00
Appeals dismissed
with costs order in
favour of Council.
Moits Pty
Limited
Class 6 Appeal against
severity of penalty by
Local Court Magistrate
Pratibha Patel
Class 1 Appeal against
a deemed refusal for a
proposed residential
dwelling
Aloma Moriaty
Matter listed for mention on 30 April 2016.
Fee Estimate: $ 20,000
Fees: $ 0
Recommendation: N/A
Decision: Deemed Refusal
Result
Pending
4
Property
DA No.
Appeal No.
Date of Appeal (DOA)
Applicant/
Other party
Council Officer
responsible
Status
Local Court
prosecution for breach
of the Environment
Planning &
Assessment Act 1979
Court Attendance
Notices (x4) in respect
of use of premises as a
sex service premises
Brett Maina
Council commenced prosecutions which were
listed for plea/adjournment on 21 May 2015.
Adjourned to 2 June 2015 for plea. “Not Guilty”
pleas entered with matter adjourned to 28 July
2015 for service of Brief of Evidence. Additional
prosecutions served on further defendant which
were listed for mention/plea on 28 July 2015.
Further pleas of “Not Guilty”. Prosecutions listed
for hearing on 7 October 2015, 20 October 2015,
25 January 2016 and 8 April 2016. Defendant
convicted and fined on all charges and ordered to
pay professional costs.
Catherine
Chambers
Court elected penalty Infringement Notice listed for
mention on 1 February 2016. Stood over for further
mention on 22 February 2016 and now 21 March
2016 for plea. Plea of Not Guilty. Hearing on 7 July
2016.
Brett Maina
Court elected penalty Infringement Notice listed for
mention on 1 February 2016. Stood over for further
mention on 22 February 2016 and now 21 March
2016 for plea. Plea of Not Guilty. Hearing on 25
July 2016.
Nature of Appeal
Local Court Matter
5 Falcon Street, Crows
Nest (aka 7-7a Falcon
Street)
In house with Council
Solicitor
Mary’s Crows
Nest ESP Pty
Ltd, and
Dai Shi
Local Court Matter
2 Vale Street,
Cammeray
In house with Council
Solicitor
Southwest
Builders Pty
Limited
Local Court
prosecution in respect
of out of hours concrete
pour
Local Court Matter
2 Vale Street,
Cammeray
In house with Council
Solicitor
Southwest
Builders Pty
Limited
Local Court
prosecution in respect
of pollution matters
Fees Estimate ($)
Fees Billed ($)
Disb. ($)
Officer Recommendation
Council decision
Result
Fee Estimate: $15,000
Disbursements: $1,000
Marys Crows Nest
ESP P/L:
Fined: $ 18,000
Costs: $ 8,412
Dai Shi:
Fined: $ 18,000
Costs: $ 8,412
Fee Estimate: $15,000
Fee Estimate: $15,000
Pending
Pending
5